Oxford University Hospitals NHS Foundation Trust v Z
Summary
In this case the court considered whether the implantation of an intrauterine device ('IUD') into a 22 year old woman against her wishes would be in her best interests. Z was a 22 year old woman with a chromosomal abnormality, chromosome 17q12 microdeletion, as a result of which she had mild learning disabilities and a bicornate or heart shaped uterus. Z was 35 weeks pregnant with her fifth child at the time of the application. Of her four previous children, one had died in the first week of life and the three others had been taken into care. Due to the risks in a natural birth as a result of her bicornate uterus, Z had been booked for a pre-term caesarean section to which she had been assessed as capacitous to consent.
The application was brought by the treating NHS Trust for a declaration on capacity and best interests that would authorise the insertion of an IUD at the same time as Z's C-section was carried out. Z did not want an IUD fitted although she did agree to having long-term contraceptive injections. Nonetheless, the application was unopposed by her litigation friend, the Official Solicitor.
This was one of the first remote hearings following the Covid-19 "lockdown". Arrangements were made for the parties to attend by Skype. For reasons that are not made clear in the judgment, it was not possible for Z to join the Skype hearing. She did, however, contact the Trust once the hearing had begun, and arrangements were made for her to participate by means if a doctor at the Trust holding his mobile up to the Skype hearing while on the phone to Z.
In terms of capacity, the court heard that Z had mild learning disabilities and an IQ of between 60 and 69. She had been assessed as having capacity to make decisions regarding her antenatal care and mode of delivery. As to contraception, however, the court heard that there was "an extremely high-risk individual where any future pregnancy would carry with it a significant risk to her and her baby's health" and that Z had a history of annual pregnancies which pointed to poorly controlled fertility.
Knowles J noted Bodey J's test for capacity to decide on contraceptive treatment in Re A (Capacity: refusal of contraception) [2011] Fam 61 that is:
- … the test for capacity should be so applied as to ascertain the woman's ability to understand and weigh up the immediate medical issues surrounding contraceptive treatment ("the proximate medical issues" per Mr O'Brien), including; (1) the reason for contraception and what it does (which includes the likelihood of pregnancy if it is not in use during sexual intercourse); (2) the types available and how each is used; (3) the advantages and disadvantages of each type; (4) the possible side effects of each and how they can be dealt with; (5) how easily each type can be changed; and (6) the generally accepted effectiveness of each.
- Given the medical evidence, both parties accepted that the information relevant to the decision in respect of contraception included the risks to Z's health if she were to become pregnant again. However, both parties differed as to whether the social consequences of any future pregnancies should be considered as information relevant to Z's decision about contraception. I did not need to resolve that difference of view given the overwhelming evidence about the risks to Z's physical health if she were to become pregnant once more.
- when asked to explain why she had decided a contraceptive injection was best, Z was unable to do so, saying "I just have. I'm having the injection". She lacked any understanding that her compliance might be in issue, saying "I will have the injection", when Dr Camden-Smith pointed out to her that she was not complying with her other medication for diabetes, anaemia and nutritional deficiencies. Z was unable to remember any factors, other than that she might die, which those involved in her care might be concerned about and appeared to be dismissive or unable to remember when Dr Camden-Smith suggested people might be worried about her losing blood, developing diabetes, the death of her baby or the need for life-altering surgery such as a hysterectomy.
Knowles J had little difficulty in concluding that Z both lacked capacity to make decision regarding contraception and that it would be in her best interests to have an IUD inserted, despite her objections, holding:
- Whilst I accept that the use of an injectable contraceptive accorded with Z's wishes and took account of the least restrictive approach set out in s.1(6) of the Act, it did not in my view effectively achieve the purpose for which contraception was sought, namely to prevent the very serious risks to Z's physical health which further pregnancies would undoubtedly bring. Z's poor compliance with not only past injectable contraceptives but with medical treatment in this pregnancy militated against me endorsing Z's wish to have an injectable contraceptive.
It is perhaps important to note that, unlike as sometimes has been the case, there was no suggestion that the insertion of the IUD should be carried out covertly. We do not know how Z responded to the court's determination that she have a contraceptive device inserted into her womb against her express wishes, because when Knowles J informed her of her decision, Z hung up the telephone.
It is possible, however, that Z might have felt disempowered by a process in which she could legitimately have contended that no one saw fit to argue her case before the court. Whilst the evidence to Z's capacity might have been compelling, and the medical evidence in favour of the insertion of an IUD being in her best interests equally compelling, there is – as we have had cause to note on a number of occasions (not infrequently in the context of reproductive rights) – a real difference between the outcome and the process by which that outcome is reached. If that process does not involve an actual argument being advanced on behalf of P in support of their expressed wishes and feelings, then, whatever the outcome, there must remain lurking concerns as to the nature of that process.
